Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with....,.

The Dispute on the Merits

This dispute stands to be resolved on the effect of section 186 of the Constitution of Zimbabwe as introduced by the Constitution of Zimbabwe Amendment (No.2) Act 2021 in light of the provisions of section 328 of the Constitution 2013.

The new section 186 of the Constitution provides -

“186 Tenure of Office of Judges

(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than 15 years, but —

(a) They must retire earlier if they reach the age of 70 years, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office;

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court.

(5) Judges of the High Court, and any other judges, hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire.

(6) A person may be appointed as a judge of the Supreme Court, the High Court, or any other court, for a fixed term, but, if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of 75 years (in the case of a judge of the Supreme Court) or 70 years (in the case of a judge of the High Court or any other court) even if the term of his or her appointment has not expired.

(7) Even though a judge has resigned or reached the age of retirement, or, in the case of a judge of the Constitutional Court, reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge.

(8) A judge may resign from his or her office at any time by written notice to the President given through the Judicial Service Commission.

(9) The office of a judge must not be abolished during his or her tenure of office.”

Its effect is to extend the retirement age of the Chief Justice, Deputy Chief Justice, and judges of the Constitutional and Supreme Court as will be dealt with in due course.

Section 328 of the Constitution 2013 reads as follows:

“(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;

'Term-limit provision' means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly in terms of section 131 unless the Speaker has given at least 90 days notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings, and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within 3 months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted without delay to the President, who must assent to and sign it forthwith.

(7) Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.

(8) Subsections (6) and (7) must not both be amended in the same Constitutional Bill nor may amendments to both those subsections be put to the people in the same referendum.

(9) This section may be amended only by following the procedures set out in subsections (3), (4), (5) and (6) as if this section were contained in Chapter 4.

(10) When a Constitutional Bill is presented to the President for assent and signature, it must be accompanied by —

(a) A certificate from the Speaker, that, at its final vote in the National Assembly, the Bill received the affirmative votes of at least two-thirds of the membership of the Assembly; and

(b) A certificate from the President of the Senate, that, at its final vote in the Senate, the Bill received the affirmative votes of at least two thirds of the membership of the Senate.”

We draw particular attention to the provisions of section 328(7) of the Constitution because this matter revolves around its relationship with section 186 of the Constitution, and the effect of that relationship on the tenure of office of the Honourable Justice Luke Malaba and the other judges who are cited as respondents in Case No. HC2128/21.

The Applicants and Respondents Contentions

The applicants case is summarized in paragraphs 61-65 of the founding affidavit in HC2128/21 and paragraphs 17-21 of the founding affidavit in HC2166/21.

It is that the second respondent and the other persons cited who occupy the offices of judges of the Constitutional Court and Supreme Court cannot remain in office beyond the age of 70 years notwithstanding the provisions of section 186 of the Constitution as substituted by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

The essence of the respondents case is that section 186 of the Constitution did not affect the term-limit or tenure of the judges of the Constitutional and Supreme Courts, and is therefore not affected by the provisions of section 328(7) of the Constitution.

ln other words, what has to be decided in casu is whether the 2nd to 18th respondents retire upon reaching the age of 70 years or are entitled to elect to continue in office for an additional five years until they reach the age of 75 years.

This issue can only be resolved by interpretation of sections 186 and 328(7) of the Constitution.

It is important to give an overview of the principles of interpretation which apply to constitutional provisions in general insofar as these have a bearing on how these two sections should be understood.

The Approach to Constitutional Interpretation

According to IAIN CURRIE & JOHAN de WAAL 'The Bill of Rights Handbook' 6th ed…., "Constitutional interpretation is the process of determining the meaning of a constitutional provision."

Thus, interpreting a Constitution entails giving "meaning" which we understand in its wide sense, to the provisions of a Constitution. An interpretation that does not give effect to the purpose of the provision does not give meaning to it; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The textual provisions of the Constitution under consideration are the starting point, but, they should not be considered and interpreted piecemeal or in isolation.

We therefore do not agree with the submission by counsel for the first respondent, that, the cases of Natal Joint Municipal Pension Fund v Enduhreni Municipality 2012 (4) SA 593 and Zambezi Gas (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor SC03-20 introduce a new and different paradigm to the interpretation of Constitutional provisions.

The textual provisions must be construed contextually having regard to the Constitution as a whole; see Matatiele Municipality v President of the Republic of South Africa 2007 (6) SA 477.

The preferred approach is the 'generous' and 'purposive' interpretation that gives expression to the underlying values of the Constitution, as was held in S v Makwanyane 1995 (3) SA 391.

Section 46(1) of the Constitution 2013 provides as follows:

“(1) When interpreting this Chapter (read 'Constitution'), a court, tribunal, forum, or body —

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section three;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular, the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law;”

The starting point is to appreciate, that, in Zimbabwe, the Constitution is the supreme law. This fundamental tenet of democracy is enshrined as a rule and as one of the values and principles upon which the nation of Zimbabwe is founded.

Section 2 of the Constitution 2013 provides as follows:

“2. Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom, or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of Government at every level, and must be fulfilled by them.”

Section 3 of the Constitution 2013 states the following, among other things:

“3. Founding Values and Principles

(1) Zimbabwe is founded on respect for the following values and principles —

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…,.;

(f)….,.;

(g)…,.;

(h) Good governance;

(i)…,.;

(2) The principles of good governance, which bind the State and all institutions and agencies of government at every level, include -

(a)…,.;

(b)…,.;

(c)…,.;

(d)…,.;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…,.;”

See also section 331 of the Constitution 2013, which provides as follows:

“Section 46 applies, with any necessary changes, to the interpretation of this Constitution apart from Chapter 4.”

The essence of the constitutional supremacy doctrine, as distinct from parliamentary sovereignty, is that the Constitution is the litmus test, the ultimate measure, by which the validity of any law, practice, custom or conduct is assessed.

This aspect distinguishes constitutional supremacy from parliamentary supremacy or parliamentary sovereignty. Where the latter system obtains, Parliament is supreme, and, any law that it passes cannot have its content questioned for validity.

Zimbabwe is a constitutional democracy in which the Constitution is supreme, and not a parliamentary democracy in which Parliament is supreme; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The principle of separation of powers, which is explicitly provided for in section 3 of the Constitution, and guaranteed by the architecture of our Constitution, has in it, that, among the three arms of the State, the judiciary has the primary duty to interpret the law; see In Re: Prosecutor-General of Zimbabwe on his Constitutional lndependence and Protection from Direction and Control CC13- 17; 17 (1) ZLR 107.

Therefore, the exercise of determining what section 186 of the Constitution means in light of the provisions of section 328(7) of the Constitution falls squarely within the mandate of the courts.

The principles which are encapsulated in the principle of good governance demand a new and different way of doing things from what may have been done in the past, hence the special mention of transparency, justice, accountability and responsiveness.

This is the context in which the entrenchment of section 328(7) of the Constitution must be understood.

The provision's purpose is, among the other important considerations, to ensure, that, a person who holds or occupies public office does so for a limited time, to prevent turning persons into institutions thereby compromising on the precepts enjoined in section 3 of the Constitution.

It is also to ensure that a person who occupies or holds public office does not influence changes in the law in order to entrench his or her occupation of the public office by extending the length of time that he or she remains in that office.

With particular reference to judicial officers, entrenchment of provisions relating to terms of office for incumbents ensures confidence in the judiciary by dispelling any suspicion that favours are being extended to them, contrary to the provisions of the Constitution, that would undermine the independence of the judiciary.

As was held in the case of Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388:

"ln approaching this question, it must be borne in mind, that, the extension of a term of office, particularly one conferred by the Executive or Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it….,. The power of extension, in section 176(1), must, therefore, on general principle, be construed so far as is possible to minimize the risk that its conferral could be seen as impairing the precious won institutional attribute of impartiality and the public confidence that goes with it."

Public confidence in the independence of the judiciary would be severely undermined if there was a belief, or even suspicion, that the judiciary, or members thereof, are, like nocturnal spooks acting under cover of darkness, knocking on the doors of the Executive and Legislative arms of Government begging or lobbying for extension of their terms of office.

This is the reason why there is need for certainty regarding the tenure of office of judicial officers in order to dispel any thinking that if they behave in a certain way they might get the benefit of favourable constitutional amendments.

In order to guard against subtraction from the founding values and principles, including the independence of the judiciary, the court must embrace substantive reasoning, an interpretive model which gives substance to those values and principles, and eschew legal sophistry which would result in narrowing down the meaning of these values.

Further, the entrenchment ensures, that, if there is any change in the Constitution, the effect of which is to extend the length of time that a person may hold or occupy public office, such a change in the in law must be subjected to the rigorous processes in section 328 of the Constitution - which include a referendum.

We point out, that, section 328 of the Constitution does not stop the legislature from amending the Constitution by extending term limits in general.

If the changes in the Constitution do not have the effect of extending the length of time that the incumbent may hold office, they do not have to go through the rigorous processes required by section 328 of the Constitution. However, if the effect of such amendments is to extend the length of time that a person holds or occupies public office, then, they must be subjected to those entrenched processes.

Section 328 of the Constitution has not been repealed by the Constitutional Amendment. It must therefore be given effect.

Interpretation of Section 186 and 328(7) of the Constitution

It is an established principle that sections of the Constitution must not be read in isolation but must be read together, and in the context of the whole text, in order to give effect to the purpose and objective of the Constitution: see Tsvangirai M v Mugabe R, Z.E.C. & 2 ORS CC20-17; (2) ZLR 1 (CC) per MALABA DCJ…,.

In this case, the two sections are not in conflict, but, must be read together and with the Constitution as a whole.

Section 328 of the Constitution, which deals with amendment of the Constitution, entrenches certain provisions. This entrenchment is by requiring, in addition to the usual procedure for passing an amendment to the Constitution, that, such amendments be submitted to a referendum and get approval from a majority of the voters voting at the referendum.

One such provision which is entrenched is section 328(7) of the Constitution, which, as recited above, provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The Constitution of Zimbabwe Amendment (No.2) Act 2021 amends section 186 of the Constitution through its section 13.

Section 332 of the Constitution 2013 defines the term 'amend' to include "vary, alter, modify, add to, delete or adapt."

In this instance, the existing section 186 of the Constitution was repealed and substituted with a new section 186.

This is an amendment.

In order to determine whether or not the amendment is one that falls within the ambit of section 328(7) of the Constitution, two requirements must be satisfied, namely –

(a) It must be an amendment to a term-limit; and

(b) It must have the effect of extending the length of time that a person may hold or occupy a public office.

'Effect' simply means result, consequence, or impact - irrespective of the expressed purpose of the amendment.

Once it satisfies these two requirements, then, such an amendment is excluded from applying to "any person who held or occupied that office, or an equivalent office, at any time before the amendment."

The reference to an 'equivalent office' is no doubt meant to deal with a situation where an amendment might seek to rename or reconfigure what is essentially the same office in order to escape the consequences of section 328(7) of the Constitution, thereby extending a person's stay in office.

There can be no question that judges occupy public office.

There was debate as to whether section 186 of the Constitution is a term limit provision which has the effect of extending the length of time that the second respondent, and the other judges of the Constitutional Court and Supreme Court, may hold or occupy office.

The respondents contended that it was not a term-limit provision.

The submission was that the only term limit which is contained in section 186 of the Constitution is one that is contained in subsection (2), which states that:

"Judges of the Constitutional Court are appointed for a non-renewable term of no more than fifteen years."

Their argument was that the retirement age stipulated does not limit the term of office of the judges. This argument means that judges of the Supreme Court and High Court have no term limit.

That argument is not sustainable.

Section 328(1) of the Constitution 2013 defines 'term-limit provision' to mean "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office."

We therefore come to the conclusion, that, section 186 of the Constitution is a term limit provision and that it has the effect of extending the length of time that a person may hold the office of judge of the Constitutional Court and Supreme Court.

It increases the retirement age of the judges of these courts from the original 70 to 75 years.

The fact that this extension of the tenure of office is subject to election by the concerned judge, and acceptance by the President, after consultation with the Judicial Service Commission, and production of a medical report, does not change its nature as an extension of a term limit.

In respect of the judge of the Constitutional Court, the term limit is based on two dimensions, namely;

(i) The period of 15 years which is provided in section 186 of the Constitution; and

(ii) The age of the affected judge.

It is clear that whichever of these two (2) occurs first terminates the tenure of the judge. This is what is generally referred to as a hybrid tenure arrangement.

There are thus three types of valid tenure arrangements in use, generally, the world over:

(i) Life limits (when one dies);

(ii) Age limits (when one reaches a specified retirement age); and

(iii) Fixed term Iimits (when a specified period of service is reached).

These three tenure arrangements are contained in section 186 of the Constitution of Zimbabwe. Tenure has to do with term of office; term of office has to do with time. Both fixed term (fixed time), and age-based term (age-based time), have to do with time. Time is the underlying factor in both of them.

Therefore, the inescapable conclusion is that varying retirement age is varying term limits.

ln respect of Supreme Court judges, the tenure of office is defined by age only. Thus, for instance, a Constitutional Court judge who is aged 70 years at the time of his or her appointment has his or her term limited to only five years. That term limit is defined by his or her age. He or she must retire upon turning seventy-five years after serving for only five years. On the other hand, a judge of the same court who is fifty years old at the time of his or her appointment has his or her term defined by the period of fifteen years. The judge retires from the Constitutional Court at the age of sixty-five years.

On the other hand, a judge of the Supreme Court, under the new amendment, retires at the age of seventy-five years irrespective of how many years he has served on that Bench.

That section 186 of the Constitution is a term limit provision, and that it is concerned with extending the length of time that judges of the Constitutional Court and the Supreme Court hold or occupy public office, is also evident from the provisions of section 186(4) of the Constitution. This provision explicitly refers to section 328(7) of the Constitution. This reference to section 328(7) would be rendered superfluous or nugatory if, as suggested by the respondents, it is found that section 186 is not a term-limit provision.

The respondents have not suggested why the legislature would engage in a superfluous exercise, especially in light of the presumption against superfluity in the interpretation of statutes.

Also, in the affidavits filed in this court, the respondents referred to its effect as extending the term of office.

See paragraphs 25.4(b) and (c) of the 19th respondent's opposing affidavit in HC2128/21.

The submission made on behalf of the respondents reads the reference to the fifteen years in isolation from the rest of subsection (2) of section 186 of the Constitution.

That is the approach to interpretation which must be discarded.

The case Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388 which has been referred to by both the applicants and respondents also confirms that age can, and does, indeed define and can be used to extend a term of office, as has happened following the enactment of section 186 of the Constitution:

"lt follows, that, in exercising the power to extend the term of office of a Constitutional Court Judge, Parliament may not single out the Chief Justice…,. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court Judge.”…,.

Section 186(4) and section 328(7) of the Constitution can be read together.

In our conclusion, section 186(4) of the Constitution does not apply to the person of the second respondent and the other persons who were judges of the Constitutional Court prior to the amendment. It also does not apply to the persons who were judges of the Supreme Court. This is because these are persons who fall within the ambit of section 328(7) of the Constitution in that they held or occupied the public office prior to and at the time of the amendment of the Constitution.

Consistent with the hallowed principle of interpretation which avoids an interpretation which results in a conflict in constitutional provisions, we come to the conclusion, that, section 186(4) of the Constitution does not apply to the judges of the Constitutional Court and Supreme Court who held office before the amendment.

There is no confusion which results from the wording of section 186(4) of the Constitution.

It says that the section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court. This means it would apply to the continuation of the mentioned public officer other than those who were judges before the amendment.

The provision mentions offices rather than the persons occupying them; section 186(4) of the Constitution must therefore be understood as applicable to persons who are appointed to the named offices subsequent to the amendment. It does not mention 'persons' and does not state that the persons who were in office prior to the amendment would benefit from it.

If it did so, this would put it in conflict with the express provisions of section 328(4) of the Constitution and its constitutionality would be in question given that it was not submitted to a national referendum.

On the other hand, an interpretation that excuses the persons who held public office as judges of the Constitutional and Supreme Courts, prior to the amendment, from the ambit of section 328(7) of the Constitution, would reduce the Constitution to a wooden iron, because any person who already holds or occupies public office can easily cause their term of office to be lengthened by enactment of a provision similar to section 186(4) of the Constitution thereby perpetuating the mischief which was meant to be addressed by the entrenchment of section 328 of the Constitution.

The Status of Honourable Justice Malaba

It is common cause that the Honourable Justice Malaba is the only judge of the Constitutional Court who has turned 70. At the time that the applications were filed, he had not turned 70. He turned 70 years old on 15 May 2021.

The applications were filed following indications that he might or would benefit from the new section 186 of the Constitution by having his tenure of office extended by another 5 years.

The respondents, in their opposing affidavits, have referred to a letter dated 11th May 2021, by which his tenure was to be extended with effect from 16 May 2021.

In view of the conclusion we have reached, Honourable Justice Luke Malaba ceased to be a judge of the Constitutional Court and Supreme Court (at 0000 hours on 15 May 2021) when he turned 70 years. Equally, he ceased to be the Chief Justice of the Republic of Zimbabwe at that time.

Nothing tums on the letter of 11 May 2021; when it was written, that was the same day that the application was filed. The letter of 11 May 2021 was intended to take effect only on 16 May 2021, on which date the then incumbent would have ceased to be a judge some twenty-four hours earlier.

An absurd situation, which neither the Executive nor the Legislature would have intended, would have resulted whereby the country would be without a Chief Justice for the period of 24 hours, between 0000hours on 15 May 2021 and 0000 hours on 16 May 2021.

There would have been nothing to extend since he would have ceased to be a judge and Chief Justice of Zimbabwe.

Thus, any purported extension of the second respondent's occupation of the office of judge or Chief Justice remains a nullity because there was nothing to extend once he ceased to be a judge at the inception of 15 May 2021. This is so whether the extension is said to have been constituted by his election to remain in office or by the letter of 11 May 2021.

The celebrated statement in the case of MacFoy v United Africa Co. Ltd [1961] I AER 1169 decidedly seals the effect of that letter:

''If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad….,. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. lt will collapse."

ln the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 the Supreme Court of Zimbabwe (per KORSAH JA) said that if an act is void ab initio it is "void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it."

In making these observations, we are mindful of the fact, that, the two applications were not based on the letter of 11 May 2021. That letter was produced in opposing papers.

Our conclusion is that the letter does not affect the conclusions which we have reached based upon an interpretation of the constitutional provisions considered above.

The Position of the other Judges of the Constitutional Court and Supreme Court

The effect of the conclusion reached above is that the persons who occupied the positions of judges of the Constitutional and Supreme Courts, prior to the amendment, cannot have their term in office extended beyond the age of 70 years based on section 186 of the Constitution as presently worded. This is because they held or occupied the concerned office before the amendment introduced by section 13 of the Constitution of Zimbabwe Amendment (No.2) Act 2021.

We point out, however, that, acting judges, be they in the Constitutional Court or Supreme Court, are not affected by the provisions of section 328(7) as read with section 186 of the Constitution 2013.

These include the 4th to 14th and the 18th respondents in so far as they have been acting Constitutional Court judges as well as the 15th, 16th and 17th respondents in case no. HC2128/21 in so far as they are substantive High Court judges who have been acting as Constitutional Court and/or Supreme Court judges.

There is no extension to the length of their term in office since they are just acting judges.

The Violations of the Applicants Rights

The applicants, in both applications, allege that the continued occupation of public office as judge and/or Chief Justice of Zimbabwe by the second respondent would violate their fundamental rights enshrined in section 56(1) and section 69(3) of the Constitution.

The parties accepted that the reference to section 69(4) in the draft order in HC2166/21 was an error, the correct and intended citation being section 69(3) of the Constitution....,.

Section 69(3) of the Constitution provides as follows:

"Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute."...,.

The second violation of fundamental rights alleged by the applicants in Case No. HC2166/21 is of section 69(3) of the Constitution.

It has been held, that, the right of access to courts is essential for constitutional democracy and the rule of law: Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC)…,.; De Beer N.O.v North-Central Local Council and South-Central Local Council 2002 (1) SA 429 (CC)…,.

ln the case of Bernstein v Bester N.O.1996 (2) SA 751 (CC)…, the purpose of the right of access to courts was explained by the Constitutional Court of South Africa as:

"To emphasise and protect, generally, but also, specifically, for the protection of the individual, the separation of powers, particularly the separation of the judiciary from the other arms of the State…,. (It) achieves this by ensuring that the courts and other fora which settle justiciable disputes are independent and impartial. It is a provision fundamental to the upholding of the rule of law, the constitutional state, the 'regstaatidee' for it prevents legislatures, at whatever level, from turning themselves by acts of legerdemain into 'courts'…,. By constitutionalizing the requirements of independence and impartiality the section places the nature of the courts or other adjudicating fora beyond debate….,."

We respectfully endorse the above exposition of the law.

Both the separation of powers principle and the rule of law are enshrined in section 3 of the Constitution 2013.

The essence of the rule of law is that any person may challenge the legality of any law, conduct, practice etc in a separate, impartial, and independent court or other forum - one that is free from the control of the perpetrator of the illegality; CURRIE & de WAAL “The Bill of Rights Handbook” 6th ed…,.

If a sitting judge can have his or her term of office extended by amendment of the Constitution just one week before he or she is due to retire, or judicial officers have their age limit extended contrary to the express provisions of the Constitution, which prevent incumbents from having terms of office extended for them while they are in office, questions will reasonably abound as to the extent to which the Court can be independent.

The intended extension of the length of time that the persons in office, as judges of the Constitutional Court and Supreme Court, do have the effect of compromising on the independence of the judiciary and the rule of law.

Significantly, the election to continue in office introduced by section 186(1), (2) and (3) of the Constitution is not an automatic guarantee that the judge concerned will continue in office. It is subject to acceptance by the President. It is not guaranteed. This has the effect of subjecting the term of office (or extension thereof) to the control of the Executive.

If any extension is to be afforded to the 2nd to 14th and the 18th respondents, then, there would be violation of the applicants right as protected by section 69(3) of the Constitution. This is so given the conclusion that we have reached, that, such extension contemplated by section 186 of the Constitution does not apply to persons who were in office as judges before the amendment.

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

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CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

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HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

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Law Portal Zimbabwe

Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

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CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA